Mr Justice Seán O'Leary may not be 100 per cent correct but he has fulfilled an important public service by stimulating debate, writes Rossa Fanning
The dying art of posthumous criticism has found a new lease of life. Hot on the heels of the release of Gerald Ford's 2004 interview with Bob Woodward, where the former US president describes the justification of the Iraq War as "a big mistake", a High Court judge has delivered a stinging deathbed critique of his erstwhile Supreme Court colleagues.
The comments of Mr Justice Seán O'Leary, published posthumously in this newspaper yesterday, have once again brought the Supreme Court's decision last June in A v Governor of Arbour Hill Prison into public focus. It is most unusual for a senior member of the judiciary to speak in such an overtly critical fashion of a recent Supreme Court decision, and the characteristically trenchant remarks of Mr Justice O'Leary have now reopened public debate on this topic.
The broader thrust of the late judge's criticism - that the Supreme Court is guilty of a general failure to vindicate the legal rights of the morally undesirable or socially unacceptable - is in fact unsupported in the short piece published yesterday. Indeed, the very genesis of the controversy in relation to Mr A was neither a populist decision, nor a convenient one from the perspective of the Government.
On May 23rd last, the Supreme Court ruled in CC v Ireland that section 1(1) of the Criminal Law (Amendment) Act 1935 was inconsistent with the constitutional rights of the accused, in that it failed to afford him the opportunity to defend a statutory rape charge by pleading that he had made a reasonable mistake as to age.
In hindsight it might be said that the real problem with this decision was that the Supreme Court omitted to offer any guidance on the position of persons who had been previously convicted of an offence pursuant to that section of the 1935 Act and who continued to serve a term of imprisonment on foot of such a conviction. Other Supreme Court decisions with potentially far-reaching tentacles - such as that in de Búrca v Attorney General, which invalidated the legislation governing the composition of juries - wisely chose to address specifically the implications for future collateral challenges.
Thus, within days of the decision in CC, the Government was plunged into an extraordinary maelstrom of controversy when A, who had previously pleaded guilty at Dublin Circuit Criminal Court to the offence of unlawful carnal knowledge and who was serving a sentence of three years' imprisonment dating from November 2004, was released by Ms Justice Laffoy in the High Court when an Article 40.4 inquiry into the legality of his detention came before her.
Article 40.4 is the constitutional provision that safeguards the liberty of the citizen, providing an in-built inquiry mechanism, commonly described as habeas corpus, whereby a detainee may make a complaint to the High Court as to the legality of his detention. Such an Article 40 application may be made by a detainee in a Garda station or an involuntary psychiatric patient just as much as by a convicted prisoner. An Article 40 inquiry is not an appeal that addresses the merits of a conviction. It is simply an inquiry into the legality of current detention.
Ms Justice Laffoy found that A was being detained on foot of a statute that the Supreme Court had recently held to be inconsistent with the Constitution.
As a matter of law, a statute inconsistent with the Constitution is ordinarily of no legal effect, and Ms Justice Laffoy held that as the purported conviction of A related to something that was not an offence in criminal law, both conviction and sentence were a legal nullity. She therefore ordered the immediate release of A on the basis that his continuing detention was without legal basis.
Within three days, the Supreme Court had heard and determined the appeal brought by the State against this decision. It did so against the background of what Mr Justice Hardiman, in the only explicit acknowledgment in the Supreme Court judgments of the surrounding political and media controversy, would subsequently refer to as "the rather breathless, often intentionally alarmist, discussion and coverage this case has engendered".
As is now well-known, each member of a unanimous five-member court delivered a judgment reversing the High Court decision, holding that A continued to be detained lawfully notwithstanding that the statute pursuant to which he was convicted and sentenced, was, as a matter of law, a legal nullity.
The Supreme Court decision carefully relies on precedent to demonstrate that a declaration of constitutional invalidity cannot ever be completely retrospective in effect.
It is true, of course, to say that the past cannot be easily undone. Even if it could, there would be dubious merit in today seeking to locate those who were imprisoned perhaps 50 or 60 years ago for a conviction on foot of an offence that, as a matter of constitutional law, was just as much of a nullity then as it is today. There is ample authority to support the absence of retroactive application to such facts.
But A was different. He was not appealing against his conviction or sentence or seeking to reopen long-since concluded proceedings. He was simply contending that his present detention was unlawful, subsequent to the announcement of the decision in CC. No element of retrospective application of the decision in CC was required for him to succeed in his Article 40.4 inquiry. Quite simply, A was not asking that any eggs be unscrambled.
This is the central aspect of the Supreme Court decision that has found disfavour with many. The late Mr Justice O'Leary criticises that court for going to significant lengths to obfuscate the position. That is surely a criticism too far. The facts were not in dispute, but the nature of the findings to be drawn from them were.
Vigorous public debate on the more important constitutional decisions pronounced by our superior courts is a welcome and healthy feature of a mature democratic system. When pronouncing on personal liberty, or on adoption, embryos, marriage or any other topic implicating constitutional rights, the courts are adding important texture and definition to our public life.
A different High Court judge, Mr Justice Philip O'Sullivan, in his retirement speech on December 21st, welcomed the prospective introduction of the mooted judicial council and voiced his opinion that the judiciary could not be immune from criticism in the modern age.
Mr Justice O'Leary has done the public an important service by making a valuable contribution to public debate, but for all of that, the spectacle of judges criticising each other in the pages of the national media is not one to aspire to.
The hierarchical common law system of precedent entitles Supreme Court judges to disagree with their colleagues on the High Court, but discourages High Court judges from publicly criticising Supreme Court decisions they may well be obliged to follow. Mr Justice O'Leary must have understood this keenly as he made his comments at a time when he realised he would never again sit on the High Court bench.
Many in the legal community will doubtless share his view that A was incorrectly decided. Mr Justice O'Leary's unusual intervention in the debate at the very least reminds the public that the Supreme Court has no monopoly on wisdom and is capable of error.
That the general public rarely even thinks in these terms is in fact a testament to the institutional respect in which our Supreme Court is quite deservedly held. However, in a pithy phrase that would have found favour with Mr Justice O'Leary, US Supreme Court justice Robert Jackson once said of that court: "We are not final because we are infallible, but we are infallible only because we are final."
All those in the legal and political community who knew Seán O'Leary will remember him fondly as a man of conviction.
I am quite sure that he would take no small satisfaction from knowing that he has succeeded in putting the cat amongst the pigeons.
Rossa Fanning is lecturer in law at University College Dublin.